Thursday, January 23, 2014

The Harper government's new judicial math?

In a hearing at the Supreme Court of Canada on Thursday, the government will duke it out with judges over clashing interpretations of the Truth in Sentencing Act. (Dave Chan for The Globe and Mail)

Judges in several provinces are pushing back against the Conservative government’s tough-on-crime agenda and its built-in limits to judicial discretion. In a hearing at the Supreme Court of Canada on Thursday, the government will duke it out with judges over clashing interpretations of the Truth in Sentencing Act. Here’s what you need to know about the hearing.

What is the Truth in Sentencing Act?
Before the act, judges across Canada routinely used their discretion to give two days credit, sometimes three, to convicted criminals for every day they spent in pre-trial custody in recognition of crowding and lack of programs there, and especially make up for the lack of remission (near-automatic reduction of a sentence by one third) and progress toward parole eligibility. The four-year-old Truth in Sentencing Act put limits on judges’ discretion to do that.

How did the Minister of Justice describe the act’s intent to Parliament?
The “general rule” would be a maximum of one day credit for every day in pre-trial custody. Only “if circumstances justify it” could judges award 1.5 days.

How did that turn out?
Judges routinely gave 1.5 days credit.

What is the new judicial math?
By law, the sentences of prisoners in provincial and federal jails are reduced by one-third (remission). This does not appear to be widely known by the public; it is found not in the Criminal Code, but in the Corrections and Conditional Release Act, and the Prisons and Reformatories Act. Sixty days becomes a maximum of 40. At 1.5 times credit, 40 days in pretrial custody count as 60. Judges argue 1.5 times credit treats those in pre-trial custody as equal to those not in custody.

What is at stake (judges’ perspective)?
Judicial discretion. “This is one instance of a larger pattern of the current government seeking to take the traditionally discretion-rich role of judges in the crucial process of sentencing and to transform sentencing into a world of minimums, bright lines and other in-advance judgments about what just punishment looks like,” says Ben Berger, who teaches at York University’s Osgoode Hall Law School.

What is at stake (government perspective)?
Public confidence in the criminal justice system, Justice Minister Peter MacKay says. That confidence is eroded by too-generous credit for time served. And it is further eroded by judges who do not respect Parliament’s intent in passing the law. “They are sowing disregard for the letter of the law, a disregard that is fatal to the regard upon which they depend to do their job and be taken seriously,” Toronto lawyer Gary Clewley says.

Who is confronting whom?
“The tougher question is whether the government is almost wanting to provoke a confrontation with judges” to strengthen its public image for crime fighting, says Ed Ratushny, a professor emeritus of law at the University of Ottawa.

What appeal courts have said
Six provincial appeal courts have sided in appeals by the Crown with the lower-court judges who were giving 1.5 days credit for loss of remission; only one appeal court, British Columbia’s, sided with the government, by a 2-1 vote. It said judges need to “honour Parliament’s intention.”

The cases
Sean Summers, 19, was convicted in Ontario of manslaughter after shaking his three-month-old daughter to death, and received 1.5 times credit for the 10 months he spent in pre-trial custody, taking 15 months off his eight-year sentence. Level Carvery, also 19, of Nova Scotia was convicted of cocaine trafficking and received 1.5 times credit for nine months in pre-trial custody, which cut his 30-month sentence roughly in half.

A criminologist’s view
“Principled sentencing (in the form of fair credit) was consciously and wilfully sacrificed for political gain,” Anthony Doob, a University of Toronto criminology professor emeritus, says in an article he co-authored in the Canadian Criminal Law Review. “Even the opposition was unwilling to oppose the legislation in order to avoid – one would assume – being seen as ‘soft on crime’ during an era in which ‘law and order’ politics appear to be gaining some ground in Canada.”